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The H-1B Visa Blog by Siliato and Malyk

H-1B Lottery Season

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With the advent of the annual H-1B "lottery" imminent, once again we are called upon to make key decisions in the last days leading up to the April 1 "deadline."  Several sources seem to indicate that neither the regular 65,000 cap nor the 20,000 U.S. master's degree cap will be reached during the 5-business-day filing rule period. That notwithstanding, we must plan on each of the caps being reached within such period and be able to address issues regarding whether to premium process or not, the timing of filing of LCAs, when and where to file the petition, the date of issuance of the U.S. degree and the ability of an F-1 nonimmigrant student to be able to remain in the U.S. if his or her F-1 status expires before 10/1/2009.

Advantage of premium processing?
Several clients insist upon and, indeed, several practitioners recommend the use of premium processing for filing H-1B cap cases.  USCIS has made it clear, however, that filing an H-1B petition under the premium processing program will not increase the chances of obtaining an H-1B under the quota. If premium processing is requested and the case is selected in the lottery, or otherwise accepted for processing if a lottery is not needed, the 15 day premium processing window will start on the day the case is selected or otherwise accepted for processing. While it is possible that a receipt may be issued more rapidly for premium processed cases selected in the lottery, that benefit may not be worth the $1,000 investment. For certain F-1 students, however, as discussed below, learning sooner may prove advantageous for them.

When should an LCA be filed?
By regulation, an LCA may not be submitted earlier than six months prior to the commencement date of the intended employment.  As such, to insure having a certified LCA on hand for an April 1 filing, the start date on the LCA must be a date prior to October 1, 2009. For example, you may utilize a certified LCA with a start date of September 23, 2009 and an end date of September 22, 2012 (3 years from the start date). Caution: It is critical that the intended start date of employment stated in the petition not be earlier than October 1, 2009. If it is, your cap case petition will be rejected since there are no new H-1B numbers available prior to October 1st. 

What if the U.S. Degree has not yet been awarded but will be awarded by 10/01/09?
Evidence must be submitted from an appropriate official at the school (e.g. a Dean or Registrar) that all requirements for the degree have been completed by March 31, 2009 or the petition will be denied.

When and where should the H-1B petition be filed?
Under current regulations, a "lottery" will take place if USCIS receives a sufficient number of petitions to reach the numerical limit for either cap on any one of the first 5 business days. While the 5 business day filing rule will bring us to April 7, 2009, the most prudent course to follow is to file all H-1B petitions on March 31st by overnight courier for April 1 delivery. Petitions should be filed with the USCIS Service Center having jurisdiction over the foreign national's employment location.

Is the "Cap Gap" regulation still in effect for F-1 students?
Under the "cap gap" regulation promulgated in April 2008, the OPT for a student in valid F-1 will automatically be extended while an H-1B petition is pending with the USCIS.  So long as the petition remains pending, is selected in the "lottery" or is approved, OPT will be extended (through the intended commencement date set forth in the petition), provided that that a "change of status" is elected in Section 3 of the I-129 form. If the case is not selected or the petition is denied, OPT will not be extended but will end on the date set forth on the student's EAD. The normal 60 day grace period for F-1 students will apply.

An F-1 student who (i) was in a valid grace period on April 1 and (ii) the beneficiary of a properly filed H-1B cap case, would benefit from an automatic extension of his or her D/S admission. Because the OPT had expired, however, OPT would not be extended automatically because it was already expired.

For additional information and frequent updates on a variety of corporate and business-related immigration law issues, please click here to navigate to Meyner and Landis LLP's Corporate Immigration Law News Blog.

Post Authored By: Anthony F. Siliato, Esq., Meyner and Landis LLP


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